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Judge Orders TorrentSpy to Turn Over RAM 726

Posted by Zonk
from the i-do-not-think-that-word-means-what-you-think-it-means dept.
virgil_disgr4ce writes "In an impressive example of the gap of understanding between legal officials and technology, U.S. Magistrate Judge Jacqueline Chooljian 'found that a computer server's RAM, or random-access memory, is a tangible document that can be stored and must be turned over in a lawsuit.' ZDNet, among others, reports on the ruling and its potential for invasion of privacy."
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Judge Orders TorrentSpy to Turn Over RAM

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  • by jonbryce (703250) on Thursday June 14, 2007 @01:35PM (#19509013) Homepage
    Take the chips out of the machine and send them to the other side.
    • Re: (Score:3, Funny)

      by no_pets (881013)

      Take the chips out of the machine and send them to the other side.
      No shit. That is exactly what I would do.
    • by benfinkel (1048566) on Thursday June 14, 2007 @01:43PM (#19509205)
      I read a couple of other articles on it (google 'em, easy to find) and basically the Judge understands more than this Slashdot abstract says.

      Torrentspy was contending that they had no record of user's IP addresses, since they don't do any IP logging. The Judge has ordered that since, even though there is no logging, the IPs are available in the RAM for a period of time, that constitutes a recording and they were ordered to capture that information from the RAM in a more permanent spot.

      This is new because it's the first time that volatile RAM has even been considered as evidence in that manner.
      • Re: (Score:3, Interesting)

        It also says

        (3) the data in issue which is currently routed to a third party entity under contract to defendants

        That's the achillies heel, if they are pulling the data out and transmitting it already, they are sunk.


      • by Red Flayer (890720) on Thursday June 14, 2007 @01:57PM (#19509503) Journal

        I read a couple of other articles on it (google 'em, easy to find)
        Replying to a post high in the comments, asking that they not only RTFA, but to Google it and read some other fucking articles?

        Sure... and I want a unicorn for my birthday... I'm just as likely to get it.

        That said, what you've written makes a whole lot more sense.

        The question I have is, how feasible is it to log all IP addresses from the RAM and associate them with the transactions in question?
      • by redelm (54142) on Thursday June 14, 2007 @02:05PM (#19509637) Homepage
        This is unbelieveable, especially in a Civil case. Sure, you can order the production of documents. Even expost format conversions. But I've never heard of imposing a requirement to make new documents.


        The meatspace equivalent to RAM-recording is to require conversations to be taped and those tapes to be produced. Worse (more intrusive) actually, since RAM must be slowed to be recorded. RAM is as ephemeral as air.


        I expect an appeal. I understand the desireability and value of the evidence, but rules are rules.

        • Not a new document (Score:3, Informative)

          by SuperKendall (25149)
          Read again, the argument is that the contents of RAM are effectively a document, and the order is to retain that document instead of discard it.

          Sounds reasonable to me, even if technically impractical (you can't realistically store every change to memory).
        • Read the judgement (Score:3, Insightful)

          by cyberianpan (975767)

          since RAM must be slowed to be recorded

          On page 3 [com.com] it says

          4) Defendants have failed to demonstrate that the preservation & production of such data is unduly burdensome, or that the other reasons they articulate justify the ongoing failure to preserve and produce such data

          They failed to make that case & I doubt they could.

          Whilst ephemeral, data is being captured in RAM - to maintain a session of course they've to identify the IP. It isn't really all that hard to write that data to disk. Ok the logfiles would be a few GB a day - from technical viewpoint the judge's request is reasonable.

        • by arborlaw (978993) on Thursday June 14, 2007 @02:56PM (#19510595) Homepage
          Agreed. We've been here before.....

          The SonicBlue / ReplayTV case in 2002 involved an order by the court to ReplayTV to create the technology to record information about subscribers for purposes of determining how much usage was violating the TOS and the law.

          From the defendant's brief in that case, which makes it quite clear that the information does not exist and would involve an affirmative duty to surveil:

          Federal Rule 34 Neither Requires Nor Authorizes An Order To Create Records That Do Not Exist.

          Not surprisingly, Plaintiffs cite no authority for such an order. It is well settled that a party is not required to create, either in paper or electronic form, data that does not currently exist within its possession. Steil v. Humana Kansas City, Inc., 197 F.R.D. 445, 448 (D. Kan. 2000) (party "cannot be compelled to produce documents which do not exist" ). Rule 34 "only requires a party to produce documents that are already in existence." Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 310 (D.D.C. 2000) (emphasis added). "A party is not required 'to prepare, or cause to be prepared,' new documents solely for their production." Id. Plaintiffs misunderstand Rule 34 and the law relating to the discovery of data compilations. It is true that Defendants may be required to produce both hard copy documents, and electronic data, that are stored in Defendants' own files and computers. But, with the sole exception of the limited my.ReplayTV.com information discussed below, the information sought by Plaintiffs is not "electronically stored" on Defendants' computers. It does not exist anywhere yet. It does not even exist on individual consumers' PVR hard drives, much less on Defendants' computers. And if the information is created, and a program written to log it in the future, it would exist on a consumer's personal property, not on ReplayTV's computers.

          Rather, Plaintiffs are asking the Court to order Defendants first to write a program to implant in a consumer's ReplayTV unit in order to create and store the data, and then to write software to collect the data from consumers (without further notice to them) and disclose it to Plaintiffs. Neither Rule 34 nor case law obliges Defendants to take these extraordinary steps.

          --originally provided by Mike Godwin in SonicBlue discussion, Cyberia-L

  • by raeb (1041430) on Thursday June 14, 2007 @01:35PM (#19509021)
    "Please sir, hand over your motherdisk."
    • by Opportunist (166417) on Thursday June 14, 2007 @01:45PM (#19509237)
      I insist that you hand over your ISDN drive. And your SCSI modem.
    • Re: (Score:3, Funny)

      by k1980pc (942645)
      I think he should have targeted those tubes which carry the data. Turn in all the ethernet cables.
  • HD (Score:5, Informative)

    by gregoryb (306233) on Thursday June 14, 2007 @01:36PM (#19509037) Homepage
    Maybe she meant 'hard drive'? The majority of the people I supported while working IT during college used the terms RAM and hard drive interchangeably.

    -gb
    • Re:HD (Score:5, Informative)

      by AKAImBatman (238306) * <akaimbatman AT gmail DOT com> on Thursday June 14, 2007 @01:44PM (#19509209) Homepage Journal
      No, nothing like that. I can only presume that the judge's order explained the reasoning in detail, but basically the court has decided that if it's in RAM it's an electronic document. To that end, the judge has ordered TorrentSpy to turn on logging to capture these "electronic documents".

      It's basically some wild legal theory invented to provide a method of giving the MPAA the discovery information they want. The bright side is that the judge has decided that the individual IP addresses may be redacted to prevent TorrentSpy's users from being targeted.
    • Re: (Score:3, Insightful)

      Are you crazy? You can't play "oh, I meant" games here. He is Serious Judge and this are Serious Court.

      What if he said "Oh, he's not guilty, but I really meant 5 years in prison."
  • Blank RAM (Score:5, Insightful)

    by Esion Modnar (632431) on Thursday June 14, 2007 @01:36PM (#19509041)
    And these guys get arrested for destruction of evidence when they find that the RAM is blank. Un-freaking-believable.
    • Re:Blank RAM (Score:4, Insightful)

      by LordSnooty (853791) on Thursday June 14, 2007 @01:43PM (#19509193)
      We're now at a stage where people should be employed by the courts system to act as educators and technical experts for any case - not advocating one side or the other of course but at least clarifying points like this for a judge. Why is this not happening.
    • by zCyl (14362) on Thursday June 14, 2007 @01:43PM (#19509203)
      Apparently "Your honor, you seem to be an idiot," is not an effective objection.
    • Re:Blank RAM (Score:5, Informative)

      by bcattwoo (737354) on Thursday June 14, 2007 @02:06PM (#19509667)

      And these guys get arrested for destruction of evidence when they find that the RAM is blank. Un-freaking-believable.
      No, because the article summary misrepresents the actual ruling. TorrentSpy claims that it can't turn over certain data because it was never logged. The judge ruled that since the data in question was in the RAM, TorrentSpy was in possession of said data and must preserve it for discovery, i.e. start logging it. The judge in no way ruled that they must physically turn over the RAM chips.
  • link is broken (Score:5, Informative)

    by chip rosenthal (74184) <chip@unicom.com> on Thursday June 14, 2007 @01:38PM (#19509085) Homepage
    Here is a working link to the article: http://news.zdnet.com/2100-9588_22-6190900.html [zdnet.com]
    • Re:link is broken (Score:4, Informative)

      by Otter (3800) on Thursday June 14, 2007 @01:57PM (#19509505) Journal
      Also, the description of the ruling is inaccurate. The issue is whether data "stored" in memory but never written to disk are sufficiently stored in the user's system that a user might be compelled to archive them to disk or paper. The judge isn't AFAICT saying that the bits actually in the RAM can be demanded.
  • New Law (Score:3, Interesting)

    by Orclover (228413) on Thursday June 14, 2007 @01:39PM (#19509103)
    It should be Law that legal officials of all sort have to have a "qualified technical advisor" present when giving any court order or summons. Mind you we geeks would then lose our main advantage when it comes to skating on the fringes of laws *cough"mp3 collection"cough*.
  • hmm.. (Score:5, Funny)

    by JustNiz (692889) on Thursday June 14, 2007 @01:40PM (#19509137)
    I wonder if its floppy or hard ram?
  • Sure (Score:5, Funny)

    by Nom du Keyboard (633989) on Thursday June 14, 2007 @01:44PM (#19509213)
    Sure, I'll unplug it and send it to you right away, your Honor!
  • precedent (Score:5, Interesting)

    by nomadic (141991) <nomadicworld@nOSpaM.gmail.com> on Thursday June 14, 2007 @01:45PM (#19509241) Homepage
    Keep in mind this is a magistrate judge, which is one step below a trial court judge (who is already generally below 2 levels of appeals courts). Magistrate judges work on a very fact-specific level, so I don't think this ruling would make even persuasive authority. I think I cited a magistrate judge like once, and that was just because the subject was so obscure I couldn't find anything else...
  • by CaptainPatent (1087643) on Thursday June 14, 2007 @01:47PM (#19509295) Journal
    Even if they had the information off the ram, there's no way to tell what context they're running the information in.

    1001011010100100 - Well with this information I have no choice but to rule the defendant innocent... oh wait...
    1001011010100101!! That changes everything! - I have no choice but to rule the defendant guilty !
  • by otacon (445694) on Thursday June 14, 2007 @01:54PM (#19509431)
    Even if they could prove you went to torrentspy...theres nothing they can do......even if they proved you downloaded a torrent...there is nothing they can do, as torrents have no copyrighted data.....tey would have to prove you downloaded the content the torrent pointed to, which at that point is out of the torrent spy loop...but who know what they'll try to say
  • by nick_davison (217681) on Thursday June 14, 2007 @02:03PM (#19509593)
    It has nothing to do with handing over physical ram. It's about whether you have a piece of information in memory but deliberately fail to ever write it to a log - and whether you can be compelled to add that to your logs.

    The more worrying demonstration of ignorance for me is:

    "To imagine my information being disseminated without my written or verbal consent is unnerving," she said. "Then again, if I'm doing something I know is illegal, can I protest?"

    If you smoke dope in your own home, can you protest if the police break in without any kind of a warrant?

    If you like oral sex in any of the states that ban it, can you protest that your landlord installed a hidden video camera to catch it?

    If you had depression and were hospitalized for being potentially suicidal, can you protest if the hospital gives the information to a former spouse who's trying to get child custody?

    Of course you can damn well protest. Violation of your privacy is not acceptable simply because you're happening to commit a crime at the time.

    It's especially not acceptable if you're not even necessarily committing a crime (seizing all server logs of all people using a torrent when only some of them are sharing copyrighted information over it). "Many people in group X are criminals, thus we're pulling all information on group X" is absolutely not acceptable. Imagine if the argument was "Many people in this housing project are involved with drugs. So we're demanding complete phone taps for everyone that lives there and we'll decide who's a criminal once we have that."
    • by Puls4r (724907) on Thursday June 14, 2007 @02:29PM (#19510159)
      Excellent argument. Also, I'm curious how this would fall under the 5th amendment. I'm having trouble thinking of some type of legal analogy. The information exists, however it is not available to law enforcement in its current form. So they try to force the defendant to give it to them, thus incriminating themselves? It would seem to me that a good argument could be made that if the authorities want it, they should have to create a warrant and go get it themselves.
  • Thought control (Score:4, Insightful)

    by drDugan (219551) on Thursday June 14, 2007 @02:11PM (#19509743) Homepage
    At every point in our technical development, the most functional machines are always compared to humans. Now, the closest machine that can emulate actions similar to our own is the mini(personal) computer and connected devices. This analogy will continue, as machines get more and more functional.

    For purely technical reasons, we have a convention now that a person's thoughts are private. We have no technical way of reading a person's active thoughts or dreams trolling their memories. We have different levels of social responsibility for a person's thoughts and actions.

    Aside from the technical issues of volatility, this issue is central to what information is public and what information is private. Taking a copy of a computer's RAM, which is technically possible in a running computer using, say and external hard drive, by order of a court, is a very real possibility, and one that has extremely deep implications for what information society deems as "discoverable".

    I think the real issue here - the one that would be fascinating to discuss - is for senescent beings (and computers are marching that way closer and closer), is there a line that we should not cross and allow other beings (humans, computers when we agree they are sentient) to have truly private thoughts? According to the mentality of this ruling, no any information you can grab is fair game. It bodes very poorly for future generations with highly advanced MRI devices that can read thoughts.

  • Perception (Score:3, Informative)

    by tyrantking31 (1115607) on Thursday June 14, 2007 @02:13PM (#19509779) Homepage
    The problem the judge has in this case is perception. The plaintiff's are arguing that there is a way for the defendant to create a tangible record of the contents of their RAM which the defendant is obligated to produce under the rules of evidence. The defendant, in trying to educate the judge as to the nature of RAM is perceived as hiding something. The judge is forced either through her own ignorance or through defense council's incompetence to order the production of the information. It's unfortunate, but probably the correct decision if the judged thought that the defendant was hiding discoverable information. Thankfully there is an appeal and perhaps the appellate attorneys will be more competent or the judge will be more open receptive.
  • by JRHelgeson (576325) on Thursday June 14, 2007 @02:13PM (#19509789) Homepage Journal
    While industry experts lamented the judges decision in this case, this newest revelation, that computer RAM should be turned over as part of discovery, proves that she has no concept of the issues she is addressing in her court. This provides fertile grounds for appeals as she is obviously dealing with issues she cannot even comprehend.

    The fact that she has ordered the defendant to CREATE evidence (log files), in order to turn it over to the plaintiff as part of their discovery request is absurd.
  • Ruling makes sense (Score:3, Informative)

    by Have Blue (616) on Thursday June 14, 2007 @02:15PM (#19509803) Homepage
    The judge didn't get the technical aspects wrong. The judge did not take technical aspects into account at all, since it's a legal decision. The finding was that the contents of a computer's memory - specifically, the persistence of a client's IP in the network stack or server software while transmitting data - was relevant to the case and it should be provided to the court. In other words, TorrentSpy's loophole of not logging anything to disk is not valid and is no different legally from creating and then deleting logfiles. Once that decision has been made, the technical aspect is someone else's problem (TorrentSpy's).

    (IANAL)
  • A Good Thing (Score:5, Interesting)

    by ratboy666 (104074) <fred_weigel@NOspam.hotmail.com> on Thursday June 14, 2007 @02:22PM (#19509969) Homepage Journal
    I am sure that there will be a lot of "snicker" replies -- how can the magistrate be so stupid...

    But this is an interesting idea. RAM holds information, specifically the IP addresses in this case.

    "Sorry, we don't have the IP address available; they are never recorded". To which the reply is: "They ARE recorded. In RAM. So copy RAM".

    Why this is a useful result: It means that it *could* become illegal to build a computer that has "unreadable" memory, because *that* memory may be where information needed by a court is being kept, and it needs copying.

    Which means that "secure writeable storage" for DRM becomes illegal (at least on computers).

    But, back to the topic, the magistrate is dead on. Of course, the RAM could simply be dumped onto a hard disks, lather, rinse, repeat. I don't think INTERPRETATION of the document was discussed!

  • Mandatory logging (Score:5, Insightful)

    by zerofoo (262795) on Thursday June 14, 2007 @02:25PM (#19510061)
    Courts are trying force administrators of systems that do not log activities to start keeping logs.

    There are many problems with this:

    Technical: RAM contents are not permanently stored due to the technical nature of RAM. This judge wants to change that.....essentially storing everything that passes through RAM.

    Cost: Why should the owners and operators of systems bear the cost of copyright enforcement? As a system administrator, what do I gain by spending my company's money on lots of disk and tape to keep logs for the RIAA? Why is that my responsibility?

    Responsible party: If my users agree to only use my systems for legal purposes and they break that agreement, why am I required to provide anything to any third party? If they violate my TOS, I should be able to kick them off my network. The RIAA and their civil case should not involve me or my network. Their gripe is with the end user. If they need my help to pursue their case, then they don't have much of a case.

    SARBOX forces companies to keep all emails and IM records as potential evidence. What's next? Recording every spoken word just in case someone needs it in court?

    The burden of proof should be on the accuser - not on the accused.

    -ted
    • Re: (Score:3, Insightful)

      by RancidPickle (160946)
      Well said. Perhaps it's time to invest in Seagate and Western Digital.

      If they want the RAM dump, one could just dump the binary to a 50,000-page Word document with 6-point font and hand that in. Not overly useful, but does fit with the draconian requirement to create documents of all RAM states.

      And you thought Windows was slow now... just wait until you have to dump every RAM state every 64ms.
  • RTFD (Score:5, Informative)

    by Anonymous Coward on Thursday June 14, 2007 @03:11PM (#19510857)
    You have been misinformed if you take the slashdot summary at face value.

    And you have been misinformed if you RTFA.

    The judge's decisions responds to most of the comments posted here, and the lawyers comments naively repeated by the author of the article.

    Instead, read the decision (RTFD) that the article links to.

    Although she mistakenly says websites have RAM, she definitely knows what RAM is, if you read her analysis about why the RAM should be turned over. She doesn't want the chip, she wants the ip address that temporarily pass through the website server's RAM.

    Based on existing case law from other copyright cases, whatever passes through a computer's RAM is a tangible copy, if only a temporarily one. According to the rules of discovery, the defendant must produce this copy because it is within their control. It is within their control due to the fact their provider uses the a web server (Microsoft's), and this server has the capability of logging ip address that temporarily pass through the computers RAM.

    So "turning over the RAM" actually means "hand over the documents that are temporarily stored in the RAM by simply turning on the logging function of the webserver." The judge is simply following existing case law and discovery procedures.
  • by nurb432 (527695) on Thursday June 14, 2007 @05:42PM (#19513091) Homepage Journal
    DejaView.. It would take snapshots of your ram and create a file off them so you could restore them later and umm *cough* bypass copy protection.

    Cool little product.
  • by Big Nothing (229456) <big.nothing@bigger.com> on Friday June 15, 2007 @03:27AM (#19516487)
    Q: Does the judge really want TorrentSpy to hand over their RAM chips?
    A: No, f****** moron. The judge simply says that information that exists in RAM can be retrieved.

    Q: What's this all about?
    A: It goes down like this:
    1. TorrentSpy has been slapped with an order to log traffic
    2. TorrentSpy claims that since their servers have no hard drive (only RAM) there "are no logs"
    3. Judge calls bullshit. The logs exist and can be transferred to other media. TorrentSpy must do this cause they are legally obligated to do so.

    As usual, the article summary misrepresents the story. TorrentSpy claims that it can't turn over certain data because it was never logged. The judge ruled that since the data in question existed in the RAM, TorrentSpy was in possession of said data and must preserve it for discovery, i.e. start logging it. The judge in no way ruled that they must physically turn over the RAM chips.

    Q: But a defendant cannot be compelled to create new documents for the plaintiff, even if the new document would just be a compilation and/or summary of other documents.
    A: That's just it: the information allready exist. It just need to be stored "permanently" (read: for years instead of miliseconds).

    Q: Wouldn't this mean that TorrentSpy has to change the HW configuration of their servers?
    A: Yes, It basically means that using RAM-based servers without permanently logging traffic is not the legal loophole once believed.

    This is not the first time that a company/organization has been ordered to change the way their system works. In the SonicBlue/ReplayTV case [2002] the court ordered ReplayTV to create the technology to record information about subscribers for purposes of determining how much of ReplayTV usage was violating and the law.

    Q: Is there no way out of this? Will the MAFIAA have their way?
    A: The judge doesn't say that the logs have to be stored electronically... Nor that they have to be stored chronologically or otherwise in a logical, searchable manner.

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